Would Trump have gotten away with a self-pardon? History will never know

The much-awaited slew of last-minute pardons from former President Trump arrived early Wednesday morning, but with a number of notable exceptions: no pardons for his kids or his son-in-law, Jared Kushner, no pardon for his personal lawyer Rudy Giuliani and — perhaps most notably — no pardon for himself. 

Many legal scholars — myself included — anticipated a self-pardon and feared the havoc it would wreak on constitutional accountability (others aren’t ruling out the possibility that he secretly self-pardoned). Given the longstanding yet legally fraught Department of Justice (DOJ) policy against indicting sitting presidents, a Trump self-pardon could have greenlighted federal crimes in the Oval Office with impunity. Ultimately, Trump decided not to manipulate the pardon power that way. Whether intentional or not, his forbearance was a gift to the Constitution.

In a possible nod to pragmatism, former White House counsel Pat Cipollone and former Attorney General Bill Bar are said to have warned Trump not to pardon himself. Article II’s pardon clause is brief, affording the president “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” A presidential pardon has no bearing on impeachment convictions and it cannot touch state and local offenses (although governors have pardon and clemency powers). The former president is facing a second impeachment trial for having incited an insurrection on the U.S. Capitol on Jan.6. Trump and his companies are already under criminal investigation in New York State and by the Manhattan district attorney on tax, banking and other business-related wrongdoing. The Fulton County district attorney is also considering an inquiry into possible solicitation of election fraud in connection with Trump’s now infamous call to the Georgia Secretary of State Brad Raffenspperger urging that he “find 11,780 votes.”

But a self-pardon would not have been meaningless for Trump. Absent a thorough federal investigation into how and why the Capitol siege happened, it’s impossible to know whether further criminal liability is lurking there. Already, DOJ is reportedly investigating whether crimes were committed in a potential pay-for-pardon scheme with the White House. So the spectre of federal criminal culpability lingers.

Moreover, Trump has long made clear his belief that Robert Mueller’s investigation into Russian interference in the 2016 election was a witch hunt and pardoned a number of people convicted of crimes in connection with that probe, including Paul Manafort, Michael Flynn and Roger Stone. He has also maintained that his first impeachment was a hoax and reiterated those accusations in connection with impeachment number two. A self-pardon could have been justified on the rationale that all of these were political attacks and he needed to foreclose further harassment by Democratic prosecutors once he’s out of office. After all, some scholars believe that acceptance of a pardon does not function as a legal admission of guilt. In Ex parte Garland, the Supreme Court explained in 1866 that “when a pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” Trump reportedly even discussed pardoning himself. 

So why not just do it? Well, it’s unclear whether Trump could have pardoned himself without some measure of taint.

DOJ has detailed procedures and regulations for seeking a pardon, with a backlog of over 14,000 requests. The process includes a five-year waiting period “to afford the petitioner a reasonable period of time in which to demonstrate an ability to lead a responsible, productive and law-abiding life,” beginning “on the date of a petitioner’s release from confinement.” DOJ rules also state that “pardon officials take into account the petitioner’s acceptance of responsibility, remorse, and atonement for the offense.” Many of Trump’s pardons circumvented this process and its criteria.

President Gerald Ford pardoned President Richard Nixon in 1974 for “all offenses” against the U.S. “which he … committed” between Jan. 20, 1969 and Aug. 9, 1974. For years, Ford carried with him an excerpt from the Supreme Court’s opinion in Burdick v. United States, which stated as an aside (not as a hard-and-fast rule) that a pardon “carries an imputation of guilt and acceptance of a confession of it.” Ford attempted to blunt the impact of his pardon proclamation with caveats, noting that “[w]hether or not he shall be so prosecuted depends on findings of the appropriate grand jury,” and “[s]hould an indictment ensue, the accused shall then be entitled to a fair trial.” But the damage was done. Researchers later determined that “Ford’s pardon of Nixon was more highly correlated with the drop in political trust than were any of the previous events of Watergate.”

Could Trump have worded a self-pardon in a way that would vindicate — not undermine — his professed victimization and innocence? Might he, for example, have successfully pardoned himself for any hypothetical crimes that might have been unfairly lodged against him but that in no way did he commit? 

The Supreme Court has been hard-pressed to weigh in on pardons, explaining in 1875 that “a pardon is an act of grace” and “limitations upon its operation should be strictly construed,” so we don’t know the answer to how specific a pardon must be in order for it to work. In Carson v. Henslee, the Supreme Court of Arkansas in 1952 upheld a governor’s pardon for first degree murder and robbery even though it “failed to describe in detail all the convictions for each offense by dates, places and case numbers.” But other state courts have applied pardons narrowly to be effective only as to the particular crime specified in a pardon.

History will never know whether the now-former president might have gotten away with a self-pardon. For that, the Constitution can actually thank Trump.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.